Woman Jailed on Marijuana Charge Appealing Her Sentence

January 04, 2007

A Los Angeles woman who surrendered to federal authorities in San Francisco on Thursday to serve a prison term for maintaining a marijuana garden is appealing for a resentencing, her lawyer said today.

Attorney Allison Margolin said Stephanie Landa, 60, is appealing her sentence of three years and five months in prison in a habeas corpus petition pending before the 9th U.S. Circuit Court of Appeals.

Landa pleaded guilty in federal court in San Francisco in 2002 to a charge of maintaining a place where marijuana was manufactured and was sentenced by U.S. District Judge William Alsup in 2003.

She admitted in a written plea agreement to growing 1,245 plants in leased indoor space on Brannan Street.

Landa has said she was growing the plants for use by patients who were entitled to medical marijuana under California's voter-approved Compassionate Use Act. Federal drug laws do not allow an exception for the state law.

Margolin said Landa's appeal asks for a resentencing on the ground that she was given the penalty under federal sentencing guidelines that were mandatory at the time but have now been made advisory as a result of a 2005 U.S. Supreme Court decision.

The defense attorney said the appeals court has put Landa's appeal on hold until the Supreme Court rules on a related case. That decision is expected by June.

Meanwhile, Landa spent Thursday night in a crowded Alameda County jail cell and has not yet been assigned to a federal prison, Margolin said.

Margolin said it is "ironic and unjust'' that Landa is in jail while she appeals whether she should be incarcerated.

Landa's appeals brief quotes Alsup as saying during sentencing in July 2003 that he considered the sentence severe but was "duty-bound to follow the law'' on the then-mandatory sentencing guidelines.

The appeal also contends Landa should be allowed to argue she has a personal medical necessity for marijuana because she suffers from a painful dislocated shoulder.

When asked for comment, U.S. attorney's office spokesman Luke Macaulay pointed to a 2003 written ruling in which Alsup said the amount of marijuana Landa grew was not only a "willful violation'' of federal law but also would not have been legal under state law.

Landa's co-defendants, Thomas Kikuchi and Kevin Gage, were given prison sentences of three years and one month and three years and five months, respectively. The start of Landa's sentence was delayed until after Kikuchi's release so that she could care for their then-teenage son, who is now 20, and her elderly parents.

As part of the plea agreement, prosecutors dropped an additional charge of cultivating more than 1,000 plants that would have carried a mandatory minimum sentence of 10 years in prison upon conviction.

Landa had a previous federal conviction for heroin importation and a state conviction for marijuana possession.

William Dolphin, a spokesman for Americans for Safe Access, a national medical marijuana advocacy group based in Oakland, said today, "It's unfortunate that medical marijuana providers and caregivers are continuing to go to prison.

"We hope Congress will take action to resolve this so we don't see these federal prosecutions,'' Dolphin said.